FY2014 H-1B Work Visa Cap Reached as of April 5th — Alternatives to H-1B

Many of our readers are aware that as of April 5, 2013, USCIS has received a sufficient number of H-1B cap-subject petitions to fill the annual H-1B quota.  All cap-subject new H-1B petitions received by USCIS on or after April 5th have been rejected.  Additionally, due to the high number of H-1B petitions (124,000), the government has run a lottery to allocate the available 85,000 H-1B visas.   Well before the H-1B cap season, our office was anticipating that the demand this year would be very high and we have repeatedly warned our readers and clients that the H-1B cap filing window this year would be extremely narrow.   As a result,  some employer and prospective employees who wanted to take advantage of the H-1B program this year are unable to do so — either because they were unable to file between April 1st and 5th or because their application was not picked by the H-1B lottery.     We seek to provide some alternatives which may be available.

Alternatives to H-1B Cap Petitions

Now that the H-1B quota has been reached, we are receiving an increasing number of inquiries by both cap-subject employers and prospective employees about the alternatives for work authorization between now and October 1, 2014, when the new fiscal year’s H-1B quota would begin (as a reminder, April 1, 2014 is the earliest a cap-subject H-1B application can be filed).  We describe some of the most common H-1B visa alternatives.  Note that the list is not intended to exhaust all possible visa types and scenarios pursuant to which an employee may be legally employed.  Our goal is to list some of the common options for the benefit of our clients and readers.  We are happy to discuss individual cases as part of our FREE initial consultation.

Cap-Exempt H-1B

A number of employers may qualify to be cap-exempt and are allowed to file for H-1B petition at any time.   A cap-exempt employer is (1) an institution of higher education, (2) related or affiliated to a higher education institution nonprofit entity, or  (3) nonprofit research organization or a governmental research organization.  Please see our cap-exempt H-1B employer guide.   As a result, many educational institutions, non-profit and research organizations may qualify to file cap-exempt H-1Bs.   We are happy to help evaluate whether an employer can qualify to be cap-exempt.

O-1 or P-1 Extraordinary Ability Visas

O-1 and P-1 visas are generally reserved for individuals who have extraordinary ability in the sciences, arts (including the television and motion picture industry), education, business, or athletics.  By definition, not many individuals qualify for one or both of these visa types, but where possible, an application for O-1 and/or P-1 should be prepared in lieu of H-1B.   In addition to being able to obtain work authorization pursuant to these visa types, an O-1 and/or P-1 approval may establish the basis for the subsequent application for an EB-1 category permanent residency.  Please contact us if you would like our help in evaluating your O-1 and/or P-1 visa case.

L-1 Intracompany Transferee

The L-1 visa type allows multinational companies who have presence abroad to transfer their employees from their overseas offices to their U.S. office (or to establish a new U.S. office).  This visa type is a good option for foreign employers seeking to establish or boost their U.S. presence and for foreign nationals currently employed abroad.   Foreign nationals who are currently in the U.S. generally will not qualify for L-1 visa.  An added benefit to the L-1 visa is that family members are entitled to a work authorization pursuant to L-2 status.

TN for Canadian and Mexican Professional Workers

An option available to certain Canadian and Mexican nationals in certain occupations is the TN visa classification.   It is available to citizens of Canada and Mexico who would be employed in the U.S. in one of the designated occupations.  The TN visa is not subject to a cap and can be obtained fairly easily either by applying at the border (for Canadians) or by filing a petition with USCIS.    Please see more information on the TN visa classification.

E-1/E-2 Treaty Trader or Investor

The E-1/E-2 visas allow nationals of countries with which the U.S. has trade treaties to invest an amount in the U.S. and receive an E-1 (treaty trader) or E-2 (treaty investor) visa.  See a list of treaty countries.

The E-1 treaty trader visa is suitable if the foreign national has a multinational employer who is willing to transfer them, and the company has significant trade between the foreign country and the U.S.  The employee must also have skills which are essential to the operation of the company trade.   Dependents of E-1 visa holder are eligible for work in the U.S.

The E-2 treaty investor allows foreign nationals to invest (preferably) a substantial amount in the U.S. and obtain an E-2 visa to be able to manage and direct their investment.  The amount required for investment generally varies depending on the industry (the so called, proportionality test) with more capital-intensive industries requiring more significant investment for E-2 application.   Dependents of E-2 visa holders are eligible to apply for work authorization.

H-1B Program Changes by Congress Possible, Although Timing is Uncertain

Not entirely by coincidence, the comprehensive immigration reform proposal which was introduced in the U.S. Senate over the past couple of days increases substantially the H-1B cap, among other changes to the H-1B program and the immigration system, generally.     Please read our overview and analysis of this proposal.

Unfortunately, this proposal is likely to be subject to extensive discussion, amendments and negotiation here on Capitol Hill and we do not know if or when the proposed immigration reform would become a law.   As a result, we urge caution with respect to reading too much into the initial proposal.   However, if the proposal becomes a law, then the H-1B cap would expand significantly and hopefully,  in upcoming  H-1B cap years, we would not face this kind of extremely narrow filing H-1B cap window.

Wait and File on April 1, 2014 for the FY2015 Cap

For some of our clients, waiting until April 1, 2014 to file a new cap-subject H-1B petition may be the best (or only?) option.  The H-1B visa type, although subject to some requirements, is a fairly common visa type for which many qualified employees are eligible.    As of now, and assuming the proposed immigration reform is not enacted by then, the FY2015 H-1B cap is expected to be the same as it was for the FY2013 fiscal year – 65,000 H-1B visas (plus 20,000 for holders of U.S. master’s degrees).

Conclusion

Our office will continue to monitor developments relating to the H-1B program, this and next year’s caps and the immigration proposals.   In the meantime, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.